Noting the discussion of charitable purposes and the cy pres doctrine in Buckley v Barlow [2016] EWHC 3017 (Ch), a dispute about the proceeds of a church built for the controversial and now extinct UK sect the Church of the Holy Agapemony (the Agapemonites).
The Agapemonites came into being in the 1840s under the auspices of Henry James Prince (1811-1899), a charismatic Anglican assistant curate (ultimately defrocked) who established a religious community - the Abode of Love - in the Somerset village of Spaxton, where leading acolytes were persuaded to enter into ‘spiritual marriages’ with three wealthy spinster sisters, the Nottidges. That gave Prince control of their assets. In Nottidge v Prince (1860) 2 Giff 246 - reproduced here - the High Court heard that a fourth sister had been kidnapped from Spaxton by her brothers and placed in a lunatic asylum to protect her from Prince’s influence. The dispute is explored in ‘Religious Fanaticism’and Wrongful Confinement in Victorian England: The Affair of Louisa Nottidge’ by Joshua John Schwieso in (1986) 9(2) Social History of Medicine 159.
In 1856 Prince, having declared himself the Holy Spirit made flesh, announced that he would impregnate a virgin who would not become physically pregnant but would give birth to the spirit of the new Messiah. The vessel for this saviour was sixteen year old Zoe Patterson, with the union taking place on top of a billiard table in front of the whole congregation, while the Agapemonites sang hymns. Uncomfortably, Zoe gave birth to a girl named Eve.
A former Anglican clergyman, John Hugh Smyth-Pigott, replaced Prince in the late 1880s. (Prince died in 1899, contraverting one of his claimes that he had abolished death, and was buried at Spaxton, standing upright to await the final dispensation. His successor Smyth-Pigott had joined the Salvation Army but left under a cloud. Attracting new, apparently predominantly middle class, adherents, the Agapemonites built a rather splendid building, complete with stained glass to the design of Walter Crane – the Ark of the Covenant - in the 1890s.
A trust was established in 1892, with 13 trustees (modelled on Christ and his 12 disciples). Ten years later Smyth-Pigott announced that he was The Second Coming (the Son of Man, judge of all, united with the Father). Unimpressed locals subsequently rioted and stormed the Ark, leading Smyth-Pigott to retreat to Spaxton, where he entered into a ‘spiritual marriage’ that saw adherents refer to his new family as the “Holy Family”.
The last adherent apparently died at Spaxton in 1956, with membership of the Agapemites having withered after Smyth-Pigott’s death in 1927. Puzzlingly, the church had been registered in 1965 as a charity for the purposes of a religious body. In 2004 the UK Charity Commission wrote to the trustees saying that the registration was wrong, given that the Agapemonites were “held not to be a religious body”
The Ark was sold in 2011 by the trustees to the Georgian Orthodox Church for around £1 million, with the proceeds being held in a solicitor’s trust account and with HM Revenue and Customs on account of any tax that might be due.
The trustees applied to the High Court for directions on disposal of the funds. Six granddaughters of Smyth-Pigott’s spiritual marriage - Catherine Jane Barlow, Margaret Campbell, Ann Buckley, Angela Patricia Ruth Webber, Victoria Jane Dyson and Sara Rachel Smyth-Riberio - invited the court to order that the proceeds be distributed to them on the basis that they were the only people left who had a connection with the Agapemonites.
The High Court considered whether the trusts declared in the 1892 trust deed were charitable (on the basis of the advancement of religion) and hence whether they were exclusively for charitable purposes. The doctrine of cy pres - articulated in for example Mayor of Lyons v Advocate-General of Bengal (1876) 1 AC 91, Attorney General (NSW) v Perpetual Trustee Co Ltd [1955] HCA 9,
Re Goods’ Will Trust [1950] 2 All ER 653, Rechtman v AG for the State of Victoria; AG (NSW) v Perpetual Trustee (1940) 63 CLR 209 and Re British School of Archaeology [1954] 1 All ER 887 means that if the trust was exclusively for charitable purposes but continuation of those purposes was impossible the funds could be be applied for other charitable purposes as similar as possible to the original ones. If not, the funds could be distributed to others.
Simmonds J noted that the fundamental principle of UK trust law that “the courts do not take it upon themselves to pass value judgements on different religions, or different sects within religions”, consistent with “the long tradition of religious tolerance in this country, which has persisted for most of the last three centuries, at least”. The heterodox nature of Prince’s claims, which might be considered to be “foolish and delusional” did not disqualify the trust from charitable status. It might be valid if it had been established “with a view to extend the influence of Christianity”.
Importantly, the trust had been been established in 1892 under Prince’s leadership, ten years prior to Smyth-Pigott’s revelation of his divinity. The Court’s decision had to be based on Agapemonites’ belief system in 1892 (or what could be found of it) rather than subsequent years where under Smyth-Pigott the sect might be considered to have “crossed a line between eccentricity and downright blasphemy”. Bracingly, it was difficult to see why Smyth-Pigott’s claim to be the second Messiah should make the difference between charitable and non-charitable status. More importantly the Court should not allow the “delusions” and “dubious activities” of Prince and Smyth-Pigott to obscure the fact that the objects of the 1892 trust deed were to promote the religious activities of a body of people who constituted a recognisable Christian sect.
Simmonds J stated that the six granddaughters did not claim to adhere to the Agapemonite’s religious principles. With the demise of the adherents many years ago it was no longer possible for the funds to be used for the sect’s religious purposes of the sect. Accordingly, the proceeds from the Ark of the Covenant should be applied in accordance with the doctrine of cy pres to a charitable scheme to be determined by the Charity Commission, rather than enjoyed by the sisters.
